Gavel to Gavel: Firing a TTD employee

The Workers’ Compensation Code 85 O.S. §301 et.seq. provides exclusive remedy to an injured employee for an on-the-job injury. Employers understand that they cannot terminate employment because an employee has filed a claim for an on-the-job injury. The termination prohibition extends to an employee who has not filed a claim, but who has retained a lawyer for representation about a claim, testified or is about to testify in a proceeding, or elected to participate or not participate in a certified workplace medical plan.

Employers may be less aware of a specific termination prohibition under the code. An employee receiving temporary total disability benefits, or TTD, cannot be discharged while receiving TTD “solely on the basis of absence from work.” For example, if an employee receiving TTD is terminated because he or she ran out of leave time, paid or unpaid, that termination would be “solely on the basis of absence from work.” Also, a policy that terminates an employee for being absent from work for a period of time could lead to a violation of the code.

The termination prohibition applies to the “period of temporary total disability,” 85 O.S. §341(B). Termination is prohibited when the employee has been awarded TTD, but is not receiving compensation in the form of TTD. Rather, the employee is receiving unemployment benefits by the Oklahoma Employment Security Commission or short-term disability benefits under an insurance policy provided by the employer.

It’s OK to fire an employee receiving TTD if an employer has a different reason for termination. However, the employer would be wise to have evidence supporting the decision. One example would be an affidavit from a supervisor stating that the employee was in violation of a published written rule. An employee fired for stealing is not being terminated because he or she is receiving TTD.

The period when an employee is receiving TTD is not a good time to decide that the employee never really performed well. Absent prior documentation of performance issues, a jury could decide that the employee was terminated because he or she was receiving TTD. A terminated employee can file a lawsuit. An employer found in violation of the code is liable for reasonable damages, actual and punitive. The employee is also entitled to be reinstated to his or her former position.

Roberta Fields is a trial lawyer and labor and employment attorney at McAfee & Taft.